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Appendix Table of Contents APPENDIX TABLE OF CONTENTS Appendix A: Court of appeals opinion, February 8, 2021 ............................................ 1a Appendix B: District court opinion, July 23, 2019 ................................................. 28a Appendix C: Court of appeals order, March 23, 2021 ........................................... 217a Appendix D: Court of appeals opinion, July 24, 2020 ............................................... 218a APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 19-70014 JAMES GARFIELD BROADNAX, Petitioner-Appellant, v. BOBBY LUMPKIN, DIRECTOR, TEXAS DEPART- MENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee. Filed: February 8, 2021 Before: JONES, HIGGINSON, and OLDHAM, Circuit Judges. OPINION JONES, Circuit Judge. James Garfield Broadnax was convicted of capital murder and sentenced to death for robbing and fatally shooting two men. After exhausting his state remedies, Broadnax filed a federal habeas petition under 28 U.S.C. § 2254. The district court rejected his petition and denied (1a) 2a a certificate of appealability (“COA”). Broadnax sought a COA under 28 U.S.C. § 2253(c)(2) to appeal numerous is- sues. We granted a COA and received additional briefing on a single issue pertinent to his Batson challenges to the jury’s makeup: “Whether the district court erroneously concluded that the spreadsheet was barred by Pinholster and 28 U.S.C. § 2254(d)(2).” Broadnax v. Davis, 813 F. App’x 166 (5th Cir. 2020) (per curiam). We now AFFIRM the district court’s refusal to consider newly discovered evidence relevant to Broadnax’s Batson claim because Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388 (2011), bars its consideration. We also explain why COA is DE- NIED on Broadnax’s other claims. I. BACKGROUND On June 19, 2008, Broadnax and Demarius Cummings fatally shot and robbed Stephen Swan and Matthew But- ler in Garland, Texas. Broadnax was convicted of capital murder and sentenced to death. After his arrest, Broadnax gave several interviews with local news stations which became the foundation of the State’s case at trial. In them, he confessed to the murder and robbery and pro- vided explicit details of the murder. He admitted that he alone killed Swan and Butler, that he had no remorse, and he hoped for the death penalty. During voir dire, Broadnax challenged the prosecu- tion’s use of peremptory strikes to remove all prospective black jurors and a Hispanic juror based on Batson v. Ken- tucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).1 The trial court 1 Batson held that “the Equal Protection Clause forbids the prose- cutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impar- tially to consider the State’s case against a black defendant.” 476 U.S. at 89, 106 S. Ct. at 1719. 3a initially denied all Broadnax’s challenges but eventually reseated one of the struck jurors. At trial, Broadnax did not dispute that he killed the victims, but he developed an extensive mitigation case that focused on his drug use at the time of the offenses. Broadnax presented expert tes- timony to the effect that because he committed the crimes at the age of nineteen, his brain would not have been fully developed. Dr. Frank Lane, a jail physician who treated Broadnax, testified that Broadnax claimed he was halluci- nating, was paranoid, and did not remember talking to the media. Broadnax also told him that he had used PCP at the time of the offense. Because of this, Dr. Lane opined that Broadnax was most likely suffering from mood and perceptual disturbances due to prior PCP use. On direct appeal, Broadnax raised fifty-six points of error, including his challenges to the trial court’s Batson rulings. The Texas Court of Criminal Appeals (“TCCA”) affirmed the conviction and sentence. Broadnax v. State, AP-76,207, 2011 WL 6225399 (Tex. Crim. App. Dec. 14, 2011), cert. denied, 568 U.S. 828 (2012). Broadnax then filed his state habeas corpus petition. After an evidentiary hearing, the trial court recommended denial of relief and the TCCA adopted the trial court’s findings and conclu- sions. Ex parte Broadnax, WR-81,573-01, 2015 WL 2452758 (Tex. Crim. App. May 20, 2015), cert. denied, 136 S. Ct. 77 (2015). Having exhausted state remedies, Broadnax peti- tioned for federal habeas relief claiming ineffective assis- tance of counsel, Batson violations, erroneous evidentiary rulings, and errors in the punishment phase jury charge. He also challenged the constitutionality of the Texas cap- ital punishment scheme and the death penalty. As part of his Batson challenges, Broadnax submitted for the first time a spreadsheet created by the Dallas County District 4a Attorney’s Office in preparation for voir dire. The spread- sheet specified the race and gender of the veniremembers and bolded the names of prospective black jurors. As Broadnax admits, this document was previously withheld by the District Attorney’s Office as privileged work prod- uct, and he only gained access when the office revised its policy. The spreadsheet was not part of the record before the state court. The district court refused to consider the spreadsheet because in Pinholster, the Supreme Court “bar[red] [the court] from considering new evidence that was not properly before the Texas Court of Criminal Appeals when it rejected Broadnax’s Batson claims on direct ap- peal.”2 Subsequently, the district court denied habeas re- lief on all grounds and further denied a COA on all claims. Broadnax appealed to this court and moved for a COA. This court granted a COA for one issue: “Whether the dis- trict court erroneously concluded that the spreadsheet was barred by Pinholster and 28 U.S.C. § 2254(d)(2).” Broadnax v. Davis, 813 F. App’x 166 (5th Cir. 2020) (per curiam). We first address the Pinholster/Batson claim and then the denial of COA on Broadnax’s other issues. II. STANDARD OF REVIEW Federal habeas proceedings are governed by the An- titerrorism and Effective Death Penalty Act of 1996 2 “If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.” Pinholster, 563 U.S. at 185, 131 S. Ct. at 1400. “Similarly, § 2254(d)(2) expressly limits re- view to the state court record.” Halprin v. Davis, 911 F.3d 247, 255 (5th Cir. 2018). 5a (“AEDPA”), and a petitioner must first obtain a COA be- fore he may appeal the district court’s denial of habeas re- lief. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S. Ct. 1029, 1039 (2003) (“Miller- El I”). To obtain a COA, a petitioner must make “a sub- stantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encour- agement to proceed further.” Miller-El I, 537 U.S. at 336, 123 S. Ct. at 1039 (internal quotes omitted). “[A]ny doubt as to whether a COA should issue in a death-penalty case must be resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005). When considering a COA application, this court has jurisdiction to determine only whether a COA should is- sue, not the ultimate merits of the petitioner’s claims. Ward v. Stephens, 777 F.3d 250, 255 (5th Cir. 2015). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Miller-El I, 537 U.S. at 336, 123 S. Ct. at 1039. Indeed, “[t]he question is the debata- bility of the underlying constitutional claim, not the reso- lution of that debate,” and a “claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consider- ation, that petitioner will not prevail.” Id. at 338, 342, 123 S. Ct. at 1040, 1042. If a COA is granted, our jurisdiction extends only to “the issue specified in the COA.” Simmons v. Epps, 654 F.3d 526, 535 (5th Cir. 2011) (per curiam). “In a habeas corpus appeal, we review the district court’s finding of fact 6a for clear error and its conclusions of law de novo.” Higgins v. Cain, 720 F.3d 255, 260 (5th Cir. 2013). AEDPA bars habeas relief for a claim adjudicated on the merits by a state court absent a showing that the decision was either (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “based on an unreasonable determination of the facts in light of the ev- idence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court decision is “contrary to” federal law if, on materially indistinguishable facts, it reaches a conclusion opposite of a Supreme Court case. Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 1523 (2000). The decision is an unreasonable application of federal law if the state court correctly identified the governing legal principle but unreasonably applied it to the facts of the case. Id. Factual findings by the state court are presumed correct unless rebutted “by clear and convincing evi- dence.” 28 U.S. § 2254(e)(1).
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